Interrogations and the Guiding Hand of Counsel: Montejo, Ventris, and the Sixth Amendment's Continued Vitality
G. Ben Cohen
The Justice Center's Capital Appeals Project
University of California, Berkeley School of Law; The Justice Center's Capital Appeals Project
Robert J. Smith
University of North Carolina School of Law
August 20, 2009
Northwestern University Law Review (Colloquy), Vol. 103, p. 456, 2009
The Supreme Court recently heard arguments in two cases that implicate the Sixth Amendment right to counsel: Montejo v. Louisiana1 and Kansas v. Ventris. Although each case presented a relatively narrow Sixth Amendment right to counsel issue, the subtext of both oral arguments suggests that the Court is rethinking the scope of the Sixth Amendment core values themselves. Since holding that the Fifth Amendment provides for a right to counsel in custodial interrogations, the Court has conflated the Fifth Amendment prophylactic rule with the Sixth Amendment right to counsel. The resulting jurisprudential disorder has prompted several Justices to consider a wholesale collapse of the Sixth Amendment right to counsel at interrogations into the Fifth Amendment Miranda framework. This short essay explains why the Court should resist the temptation to do so.
Number of Pages in PDF File: 8
Keywords: right to counsel, counsel, Sixth Amendment
Date posted: August 26, 2009 ; Last revised: October 1, 2009
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